CAAFlog » Court-Martial News

As tipsters and commenters have been reporting, Marine Corps Times, here, is running a story that says the prosecutor that oversaw the NCIS raid of Marine Corps defense offices at Camp Pendleton was removed from his job (prior coverage here and here).  It also notes that at least one and possibly other Marine Corps’ trial judges ruled that the “search on defense offices, instigated and overseen by the prosecution, constituted apparent unlawful command influence . . . .” The story includes pictures of the defense counsel office raid at Camp Pendleton  and this piece of information as well:

The attorneys prosecuting on behalf of the U.S. government called for the May 2 search with the intent of unearthing a cell phone containing evidence in the case of Marine Sgt. Rigo Betancourt, accused of drug-related crimes. The defense team on the case provided text messages from the phone to prosecuting attorneys, but refused to turn over the phone itself without a judicial order. The prosecutors then obtained the equivalent of a search warrant from Col. Tracy King, then-commander of Combat Logistics Regiment 15 and the designated area commander. In the ensuing two-and-a-half-hour armed search, investigators unearthed the phone in question within minutes, but continued to scour the remaining office spaces, where material for many other active cases was kept.

The story alerts us that Marine Corps trial judge Lt. Col. Chris Thielemann also recently issued a veiled reprimand of defense counsel for their response to the raid:

Thielemann’s ruling in the Miramontes case also contained a veiled reprimand for senior Marine defense attorney Lt. Col. Clay Plummer, who denounced the office search to The Associated Press shortly after it took place, calling it “unacceptable” and “crazy.” The judge recommended that a decision be made on whether Plummer’s comments violated a rule prohibiting “extra-tribunal statements,” and said a ruling on the ethical propriety of any of the defense attorneys’ actions should be made by the court’s Rules Counsel or the judge presiding over the Betancourt case.

I’ve read the JAG Corps’ PR Instruction and I would say Judge Thielemann is unnecessarily recommending a referral to Rules Counsel.  With regard to statements in response to information in the public domain through the actions of others:

Notwithstanding paragraphs a and b(l) through (7), a covered attorney may make a statement that a reasonable covered attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the covered attorney or the attorney’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

JAGINST 5803.1D, Rule 3.6(d).  Not knowing all the facts, in fact knowing only a tiny sliver of them, I can’t say there was or was not a violation.  But, particularly in light of the UCI ruling(s), what defense counsel seemed to be doing was attempting to mitigate the effects of the publicity about the raid.  Prior coverage of the ABA’s statement on the raid, and attorney-client privilege issues, here.

The suspect in the stabbing at Naval Medical Center Portsmouth is being handed over to Navy authorities after fleeing the base before the base was locked down reports WAVY TV 10 here. Another suspect who may have helped the PO3 Harwell escape is being questionned.

I don’t even know what to say about the USCGA’s decision not to prosecute a cadet at court-martial for entering a fellow cadets room while drunk and touching her on the leg, report here. The accused cadet said he went into the wrong room thinking it was his girlfriend’s room.

WaPo reports here that SGT Bowe Bergdahl was previously separated from the Coast Guard with an uncharacterized discharge and also gives us a glimpse of his thoughts about deploying from his journals.  Will this push him closer to court-martial?

Prior coverage of the Taliban prisoner exchange and potential UA/desertion charges here.

That’s the story in this report from McClatchy’s Michael Doyle:

For two days in a Washington Navy Yard courtroom, [Navy CDR Paul Walker] oversaw a hearing to determine whether there’s probable cause to think that Hospitalman Kevin McCormick Jr. sexually assaulted the sailor following a night of drinking and dancing. McClatchy’s policy is to not name alleged victims of sexual assault.

McCormick’s case is both typical and extraordinary.

What’s typical is the role of alcohol and the he-said-she-said conflict over events. The accuser says she was raped after she’d blacked out. McCormick says the sex was consensual.

What’s extraordinary is the still-open Naval Criminal Investigative Service probe into claims that the accuser tried to extort $1,000 from McCormick in exchange for her silence.

“I do know there’s a possibility that I could be charged,” the accuser testified Tuesday, “and there’s a possibility that I could not be charged.”

At the end of the report you’ll find the following additional details:

Awakening the next morning amid bloody bedsheets, the woman said she’d concluded that she’d been raped. In subsequent conversations with McCormick, who went to NCIS investigators after tape-recording their first call, the woman sought money.

“I’m going to say you raped me, if you don’t comply,” the woman said, according to one tape played at the hearing, adding, “The real question is, how much does your naval career mean to you?”

After having been gone for so long, I thought I would drop in to start a little $%*#-storm by posting this piece from Reuters which notes that Secretary of the Army John McHugh released a statement, here, which makes no mention that the Army has plans to court-martial Sgt. Bowe Bergdahl.  Of course, Bergdahl was recently returned to US forces from Taliban/Al Queada custody in a prisoner swap of sorts, see prior coverage here (NYT, May 31) and here (WSJ, today).  But, as many media outlets have covered, see e.g. WaPo here, Bergdahl allegedly walked off his post in Afghanistan before being captured by insurgents.  Commence comment $%*#-storm.

Stripes reports, here, that a military judge has dismissed charges against Air Force Chief Master Sgt. Roy A. Bowser Jr.  The government reportedly twice failed to disclose evidence that might be categorized as Brady v. Maryland, see United States v. Mahoney, 58 MJ 346 (C.A.A.F. 2003), and was likely required to be disclosed under R.C.M. 701, because it reportedly would have challenged the credibility of the victim in the case.

In this post on May 2, Phil broke the story of a prosecution-driven search of the Camp Pendleton Branch Office of the Marine Corps Defense Services Organization. The search was reportedly authorized by the cognizant installation commander, and reportedly sought a cell phone alleged to be in the possession of an accused’s military defense counsel.

Seven days later, in this post on May 9, Sam noted that the media was on to the story.

Last week, in this post on May 22, Phil provided us an update with details from a report by Associated Press writer Julie Watson that was reprinted in the Marine Corps Times. However, the Marine Corps Times version omitted part of Ms Watson’s report. As reported on the AP’s site:

Prosecutor, Maj. Doug Hatch, told the judge that the prosecution ordered the search as a last resort after the defense refused to hand over the phone.

“They were looking for one thing and one thing only,” he said. “They were not trying to seek out any other evidence.”

But the search didn’t stop with one phone or one office. Rather, as reported by Ms Watson:

Military investigators said they were looking for a cellphone in a separate case involving drug use and gang activity. Investigators testified Thursday that they continued to search all of the defense attorneys’ offices even after locating the cellphone in a desk drawer because the lawyers would not verify that it was in fact the correct phone.

Sadly, it seems that no new information about the search has been released to the public. However, today the President of the American Bar Association released a statement on “Attorney-client privilege and government surveillance”:

The American Bar Association recently met with National Security Agency General Counsel Rajesh De to discuss current government procedures for protecting the attorney-client privileged status of material obtained through government surveillance. We also discussed how those procedures may be further strengthened.

The ABA emphasized that the attorney-client privilege is essential to the fairness of our justice system and the independence of the legal profession. The privilege protects the confidential lawyer-client relationship and allows clients, whether they are businesses seeking regulatory guidance or criminal defendants facing loss of liberty, to candidly communicate with lawyers and receive effective counsel. The assurances received were encouraging, particularly that procedures are in place to minimize the acquisition, retention and dissemination of information related to U.S. persons, including any potentially privileged information.

This only begs questions such as: What (if any) procedures are in place to minimize the acquisition, retention and dissemination of privileged attorney-client communications when military prosecutors orchestrate a search of military defense counsel workspaces? Further, what safeguards exist to protect innumerable other attorney-client communication mediums that are routinely monitored (such as government computers that explicitly warn of monitoring at every log-in) from prosecution quests for evidence? Additionally, do commanders balance the need to protect the existence (never mind the public image) of the attorney-client privilege in the military against prosecution-driven search requests?

Finally, Ms Watson reports that Major Hatch told the military judge that this was a last resort. Was there really no other way?

Notably, Ms Watson’s report alludes to what’s at stake:

The findings of the May 2 search were revealed Thursday during a motions hearing for Lance Cpl. Eric Salinas, a defendant in a hazing case who wants to sever his relationship with his Camp Pendleton lawyers because of the search. He told the judge he wants to be represented by attorneys outside the base.

His defense lawyers went one step further and asked the judge to throw out the charges against him if he cannot get a fair trial because of the raid.

The ABA Journal is following the “raid” on Marine Corps defense counsel offices at Camp Pendleton.

Stars and Stripes reports here that:

Two veterans who advocate for injured or mentally ill soldiers filed a lawsuit saying they have been illegally barred from Fort Carson.

The lawsuit, filed in Denver federal court, says Robert Alvarez and Andrew Pogany were told in November 2012 their presence disrupted “good order and discipline” on the post. They say they were given no specifics.

Readers may recall our coverage of a lawsuit filed by private investigator Carolyn Martin over an order banning her from courtrooms at Camp Pendleton (and other claims).

A year ago, in this post, we noted the beginning of an investigation into Army Major General Michael T. Harrison’s handling of a sexual assault allegation against a subordinate. That investigation is complete, and according to this Stars and Stripes report, the investigation substantiated a number of allegations against the general. Stars and Stripes also reprints this Washington Post report, and provides this copy of the redacted report of investigation.

Some commenters have mentioned this story: McClathy reporter Michael Doyle writes this report about the reassignment of former Marine Corps military judge Lieutenant Colonel Palmer:

A Marine Corps officer whose bellicose prosecutorial rhetoric prompted defense complaints will now oversee defense attorneys, potentially including some who blew the whistle on him.

In a remarkable career turnabout, Lt. Col. Robert Palmer has been named the Marine Corps’ regional defense counsel for the eastern region. The new assignment puts Palmer in charge of about 30 defense attorneys at Marine Corps bases in North Carolina and South Carolina.

LtCol Palmer’s comments while serving as a military judge became part of our #8 Military Justice story of 2012, and are still an issue in some cases pending appellate review.

According to this report from Stars and Stripes:

An American airman has been charged in the death of a U.S. Navy petty officer who was found dead in the passenger seat of a car in Kaiserslautern during a traffic stop in Germany in December.

“On March 10, 2014, charges of murder and other violations of the Uniform Code of Military Justice were preferred against U.S. Air Force Staff Sgt Sean M. Oliver, 34, of American Forces Network – Europe,” 86th Airlift Wing spokeswoman Sandra Archer wrote in an emailed statement Friday to Stars and Stripes.

Oliver, a broadcast engineer for AFN at Ramstein Air Base in Germany, was charged with assaulting and strangling U.S. Petty Officer 2nd Class Dmitry Chepusov, who also worked for AFN. Oliver was also charged with obstructing justice and making false statements about Chepusov’s death, according to Archer.

Oliver, 34, was stopped by German police early on the morning of Dec. 14 for driving erratically and was later determined to have been legally intoxicated, according to a German police spokesman. During the stop, the police discovered Chepusov unresponsive in the car’s passenger seat. Medical personnel later pronounced Chepusov dead at the scene.

A German autopsy concluded that Chepusov died of “force to the neck,” and a German judge charged Oliver with manslaughter before he was remanded to U.S. custody.

Staff Sergeant Oliver was charged with numerous offenses, including premeditated murder. An Article 32 pretrial investigation was scheduled. But expecting that the Government would seek a capital referral, the Defense asked the convening authority to authorize the employment of a mitigation specialist to present evidence in extenuation and mitigation to aid the convening authority’s referral decision. The convening authority denied the request, and the Defense filed a petition for a writ of mandamus with the Air Force CCA in an effort to compel funding for the expert.

In a short order, the Air Force CCA denied the petition. Oliver v. Mordente, No. 2014-04 (A. F. Ct. Crim. App. May 9, 2014) (link to order).  Noting that “no court-martial exists at this point, let alone a court-martial referred as a capital case,” and that “no military judge has had the opportunity to rule on any motions related to the pretrial investigation or the appointment of an expert,” the CCA explains that:

Even when a case is referred as a capital matter, servicemembers do not have a per se right to a government-funded mitigation expert. United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F. 2005). Prior to referral, determination of whether to approve a defense request for an expert witness is left to the province of the convening authority. R.C.M. 703(d).

Order at 2.

Read more »

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

A case that could become a capital court-martial is developing in the Air Force. This report from the Air Force Times begins:

Senior Airman Charles Amos Wilson III, a support team member with the 461st Aircraft Maintenance Squadron at Robins Air Force Base, Georgia, was already in trouble with local authorities when he was arrested in August, charged with killing his fiancee and her unborn child.

He had been arrested in October 2011 after a fire in his rental home killed Demetrius Hardy, a civilian employee at Robins. Authorities believe Wilson and Hardy, along with Infini Hardy, conspired to set fire to Wilson’s trailer to collect insurance money.

Less than a year later, Wilson was arrested by authorities after a female Air Force technical sergeant said he drove toward her in a pickup truck in a threatening manner, dragged her by the hair, fired a gun from the window of his home at her and told her, “I’m going to make you die today.”

In the second case, the Air Force requested, and was denied, jurisdiction to handle prosecution after Wilson was arrested in July 2012. Georgia authorities placed Wilson in a pretrial diversion program,until he was arrested Aug. 31 as a suspect in the shooting death of 30-year-old Tameda Ferguson, who was 8 ½ months pregnant.

Now the Air Force is handling charges in all three cases.

More details can be found in this local media report that was picked up by Stars and Stripes. The report discusses a recent Article 32 hearing that included discussion of the possibility of a capital referral:

Muldoon is tasked with making a recommendation on whether Wilson should face a court-martial, the charges that he should be tried on at the court-martial and whether the death penalty should be sought. Military defense attorney Maj. Willie Babor alleged Wilson will have “inadequate representation” if the death penalty is sought at court martial. Prosecutors have filed aggravated circumstances calling for the death penalty, including the allegation that Wilson is responsible for three deaths.

On the Military Justice Legislation front, this Associated Press report discusses a recent HASC vote:

In an emotionally charged debate, the House Armed Services Committee rejected a measure that would have stripped the long-standing authority to decide whether to pursue a case, especially those related to sexual assault, and hand the job to seasoned military lawyers. The vote was 34-28.

And Politico has this report about the political environment.

The Huffington Post reports here that “a military lawyer representing the mastermind of the Sept. 11 terrorist attacks is resigning from the U.S. Army, which was trying to force him off Khalid Sheikh Mohammed’s defense team on the grounds that he needed to attend a graduate course this year.”

Finally, we’ve posted just a couple of links to reports about the Barbera case (see here and here). Sergeant First Class Michael Barbera is accused of premeditated murder in the shooting deaths of two Iraqi boys in 2007. This Reuters report, this Associated Press report, and this LA Times report all discuss the allegations and last month’s Article 32 investigation proceedings. But this report from Stars and Stripes discusses the fact that the killings initially went unreported. It includes discussion of the Report of the Subcommittee on Military Justice in Combat Zones by the Defense Legal Policy Board: Military Justice in cases of U.S. Service members alleged to have caused the death, injury or abuse of non-combatants in Iraq or Afghanistan:

Though the report did not pass judgment on particular cases, the subcommittee reviewed instances of alleged misconduct that caused civilian casualties.

“Evidence exists that service members at the point of contact, or their leaders, have been reluctant to inform the command of reportable incidents,” the subcommittee found. “This reluctance may be attributed to any number of potential factors, including a feeling of justification in connection with the actions taken, fear of career repercussions, loyalty to fellow servicemembers or the unit, or ignorance.”

The report recommends changes in the military justice system’s handling of reporting and adjudicating civilian killings, injuries and abuses.

In this post, the No Man discussed that report when it was commissioned in 2012, and in this post he provided this link to the report itself.

The story that Phil reported on last week has hit the headlines. Multiple media sources are reporting on the search of defense counsel offices at Camp Pendleton. From the Washington Post:

Investigators raided the offices May 2 in search of a cellphone tied to a case being tried at the base, north of San Diego, Lt. Col. Clay Plummer told The Associated Press.

“This is just unacceptable,” said Plummer, the Marine Corps’ regional defense counsel for the West. “Just think of the U.S. federal Marshals or FBI raiding a public defender’s office, that’s what this is the equivalent to. It’s crazy.”

Marine Corps officials called it a “rare event” and said a neutral, independent judge advocate has been appointed to review the seized evidence to identify whether any potential privileged material was improperly disclosed. Also to be reviewed is how the search was conducted.

Officials said they could not comment further because of pending litigation and the independent review.

Defense lawyers were contacting hundreds of clients to inform them that military law enforcement officials had opened case files, Plummer said.

The search’s authorization was granted by the area commander. Two armed, uniformed officers and members of the criminal investigative division came into the building and did not allow anyone to leave while they searched for the cellphone, Plummer said. They searched every attorney’s office — including those with no relation to the case — and continued to search even after locating the cellphone, he said.

This should get interesting.

USA Today is running this report from the Marine Corps Times about continued pressure on the Commandant of the Marine Corps from Congressman Walter Jones over fallout from our #6 military justice story of 2013.

Stars and Stripes has this report about the LTC Morse cease-and-desist order. Phil broke that story in this post.

And also from Stars and Stripes is this report that:

Secretary of Defense Chuck Hagel announced a department-wide review of the services’ alcohol policies during a news conference with reporters Thursday, the same day that the Pentagon released its latest report on sexual assault within the ranks. The Defense Department revealed there were more than 5,000 reports of sexual assault by servicemembers in fiscal 2013, a 50 percent increase over the previous year.

Officials have said that the actual number of sexual assaults is much higher because many troops are reluctant to report such attacks.

More than two-thirds of the sexual assault reports involved alcohol use by either the victim, the assailant or both, according to the Pentagon.

“[The alcohol policies] will be revised, where necessary, to address risks that alcohol poses to others, including the risk that alcohol is used as a weapon against victims in a predatory way,” Hagel said.

The Daily Beast has this report about the wife of a Marine who alleges that her husband was abusive, and that military authorities were slow to act:

Herron’s ex-husband, of course, has not been proven guilty of any crime. At the moment, Herron’s accusations are still just that. But the very fact that over a year after her investigation began Herron’s allegations have still not been resolved through the military justice system points to how slowly the wheels of justice turn under current policies. It also shows how excruciating it can be for those involved to navigate through the process. Accuser and accused alike can be placed in a limbo without a clear sense of the next step in the process or what resources, if any, they can count on for support and resolution.

An in a similar vein, the NPR program Here and Now reports here about:

A preliminary military hearing at Joint Base Lewis-McChord in Washington state continues today to determine whether then-Staff Sergeant Michael Barbera should face a court-martial in the slaying of two unarmed Iraqi brothers. The brothers were herding cattle near where Barbera’s Army reconnaissance team was hiding. Fellow troops say the boys were only 10 or 11 and posed no threat, but that Barbera shot and killed them anyway. The shootings were in 2007.

In 2009, some of Barbera’s fellow soldiers came forward. And Army criminal investigators looked into the case but just issued Barbera a letter of reprimand. It wasn’t until an investigation by Pittsburgh’s Tribune-Review in 2012 that the Army filed charges against Barbera, who could face life in prison if he’s convicted of premeditated murder.

Finally, on the sexual assault front, this report from U.S. News and World Report discusses proposals to give military sexual assault victims amnesty for collateral offenses, this report from The New York Times discusses the recently released Department of Defense Fiscal Year 2013 Annual Report on Sexual Assault in the Military (report available here), and this report from The Christian Science Monitor notes that “by the Pentagon’s data, men account for half of all reported victims of sexual assault in the military.”

Here are links to two news stories by McClatchy reporter Michael Doyle about United States v. MacDonald, No. 14-0001/AR (CAAFlog case page):

CAAF is reviewing two issues in MacDonald:

I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.

II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

My argument preview will post tomorrow morning.

Case Links:
• ACCA opinion
• Blog post: CAAF to explore the bounds of possible drug-induced psychosis
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Media coverage of United States v. MacDonald, No. 14-0001/AR

I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.